Filed 12/16/13 G arcia v. Frasier CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANDRES J. GARCIA, a M inor, etc.,
Plaintiff and Appell ant,

v.
GORDON FRASER,
Defendant and Respondent. B246267
(Los Angeles County Super. Ct. No. TC025711)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lynn D.
Olson , Judge. Reversed

. Nathaniel J. Friedman, A Professional Corporation, Nathaniel J. Friedman and Barton A. Friedman for Plaintiff and Appellant

. Ryan Datomi, Richard J. Ryan, Jeffrey T. Whitney and Dawn Cushman for Defendant and Respondent.

____________________2 INTRODUCTION

Plaintiff Andres J . Garcia , by his father and guardian ad litem, appeals from a judgment following an order granting a motion by defendant Dr. Gordon Fraser for summary judgment. W e reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background
Maria Gonzalez was pre gnant with Andres in 2003 . H er obstetrician and gynecologist was Dr. Jorge Carreon. Early in the morning o n November 19 , 2003
Gonzalez arrived at St. Francis Medical Ce nt er ’ s Family Life Center with l abor
contractions

. D r. Fraser was the on

- call obstetr ician and gynecologist for the emergency departmen t at St. Francis Medical Center , although he was not on

- call for D r. Carreon or St. Francis Family Health Center

. T he nursing staff contacted D r. Fraser because
D r. Carreon was u navailable. D r. Fraser adm itted Gonzalez a nd issued telephonic orders, including laboratory studies, fetal monitoring, and pain medication. Within two hours, Gonzalez’s cervix was completely dilated and she was beginning to push. Dr

. Fraser , whom the nurses had called to the deli very room, used a vacuum to facilitate the delivery, because there had been an episode of heart rate
deceleration. After delivery of Andres ’ head, Dr. Fraser noted shoulder dystocia , which
meant that Andres ’ “ shoulder became lodged under [Gonzalez’s] pelv is, impeding delivery

. . . . ” To help relieve the shoulder dystocia, the nurs es repositioned Gonzalez

. Dr

. Fraser then performed a corkscrew maneuver , followed by another use of the

vacuum . Dr

. Fraser then delivered Andres, who weighed 10 pounds, 10 ou nces at birth.
Andres ’ APGAR score was initially one but improved to nine following resuscitative

measures by t he neonatal team. Andres had decreased move ment in the left upper
shoulder area and Erb ’ s p alsy

.3

After birth, Andres underwent physical therap y and other conservative treatment to improve the mobility of his left arm and hand. In 2011, w hen Andres was seven years old
, doctors at Los Angeles County / USC Medical Center performed a procedure on his
left shoulder called a proximal humerus derotation al osteotomy and intern al fixation
, which is a relatively major o peration designed to realign the relationship between the arm
and the shoulder

.

B. Procedural Background On September 8, 2011 Andres, by his father and guardian ad litem, filed this
action against St. Francis Medical Center, D r. Carreon , Dr

. Fraser , and others

. 1 Andres ’ operative first amended complaint alleged a single cause of action for professional

ne gligence. Andres alleged that Dr. Fraser negligently delivered Andres vaginally, rath er than by cesarean section, and that h is attempt to alleviate the shoulder dystocia by

“‘ pulling ’ on the head ” fell below the standard of care. Andres alleged that Dr. Fraser ’ s negligence caused shoulder dystocia and Erb ’ s p alsy, which has required and w ill require past and future medical treatment and hospitalizations. Dr. Fraser ’ s answer asserted
several affirmative defenses , including the Good Samaritan defense pursuant to Business
and Professions Code section s 2395 and 2396 and Health an d Safety Code
section 1799.102

. Dr. Fraser f

iled a motion for summary judgment or alternativel y summary adjudication on two grounds. First, Dr. Fraser argued that the undisputed evidence
showed that the medical care he provided to Andres conformed with the standard o f care
and did not cause or contribute to Andres ’ injuries. Second, Dr. Fraser argues that he was

“ entitled to statutory immunity under California law for his actions ” as a Good
Samaritan. Dr. Fraser submitted the declaration of Dr. D. Gene Parks as an e xpert witness on Dr. Fraser ’ s compliance with the standard of care. In opposition to the

1 Only Dr. Fraser is a party to this appeal.4

motion, Andres submitted the declaration of Dr. Albert J. Phillips, also an expert on the standard of care, to whic h Dr. Fraser filed objections. The trial court gra nted the motion. The trial court overruled one of Dr. Fraser ’ s objections to Dr. Phillips ’ declaration and sustained three others

. The trial court ’ s ruling
stated in its entirety : “ The declaration of Dr. Parks is sufficient to meet the moving party ’ s bu rden on the issues of lack of b r each and causation. Defendant ’ s objections #2, 3 and 4 to the declaration of Dr. Phillips are sustained. Defendant ’ s objection #1 to the declaration of Dr. Phillips is overruled. In light of the ruling on the objections, the declaration of Dr. Phillips is insufficient to create a triable issue of fact as to causation. ” The trial court entered judgment o n October 23, 2012 . Andres timely appealed.

DISCUSSION

A. Standard of Review
We review a trial court ’ s order grantin g a motion for summary judgment “ de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. ” ( State of California v.
Allstate Ins. Co. (2 009) 45 Cal.4th 1008, 1017

- 1018; Purton v. Marriott Internat

. , Inc. (2013) 218 Cal.App.4th 499, 504 .) A defendant moving for summary judgment has the
initial burden to make a prima facie showing there is no merit to a cause of action and
that therefore the defendant is entitled to judgment as a matter of law

. (C ode C iv. P roc., § 437c, subd. (p)(2) ; Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720 ; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 .) To satisfy this burden, the moving
defendant must show that at least one of the elements of the cause of action has not been established by the plaintiff and cannot reasonably be establish ed
, or must establish the
elements of a complete defense to the cause of action. ( Code Civ. Proc. , § 437c,
subds. ( o ) , (p)(2); State of California v. Allstate Ins. Co.
, supra , at p. 1017 ; Aguilar
, supra , at p. 849; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484. ) If the moving defendant meets th is burden, then the burden shifts to the plaintiff to show that5

th ere is at least one triable issue of material fact regarding the cause of action or as to the complete defense. (C ode C iv. P roc., § 437c, subd. (p)(2); Aguilar
, supra , at p. 849 ; Jessen , supra , at p. 1484 .) “ There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. ” ( Aguilar
, supra , at p. 850, fn. omitted ; accord, Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003. )

B. Breach of D uty The elements of a cause of action for medical malpractice are “‘“‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession com monly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’ [Citation.]”’ [Citation.]” ( Avi vi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2;
Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) In a medical malpractice action,

“‘ expert opinion testimony is required to prove or disprove that the defendant perform ed in accordance with the prevailing standard of care [citation], except in cases where the negligence is obvious to laymen. [Citation.] ’ [Citation.] ” ( Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) “‘“ California courts have incorporated the exper t evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is e ntitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. ”’ [Citation.] ” ( Powell
, supra , at p. 123.) On review of the grant of summary judgment in a medical malpractice case, we construe the declaration of plaintif f ’ s expert liberally “and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff.” ( Id. at pp. 125

- 126.)6

We conclude that the trial court erred in granting Dr. Fraser’s motion for summary judgment on the issue of breach o f the duty of care because there were triable issues of
material fact . As noted above, the trial court sustained three of Dr. Fraser’s four evidentiary objections to the declaration of Dr. Phillips (although two of the four objections were to the same par agraph), and then ruled that the remainder of Dr. Phillips’ declaration did not create a factual issue regarding whether Dr. Fraser’s conduct was below the standard of care and caused Andres’ injuries. On appeal, Andres does not challenge the trial court’ s evidentiary rulings with any argument, legal authority, or citation to the record. Therefore, Andres has forfeited any challenge to those rulings. (See Salas v. Dep artment of Transportation (2011) 198 Cal.App.4th 1058, 1074; Jessen v. Mentor Corp. , sup ra , 158 C al.App.4th at p. 1492, fn. 14.) The portion of Dr. Phillips’ declaration that the trial court did not excl ude stated, in relevant part:
“7. I respectfully disagree with [Dr. Fraser’s] stated opinion, i.e., that he complied with the standard of c are. “8. Based on my background, training and experience, and to a reasonable degree of medical certainty, it is my opinion that, in this case, [Dr. Fraser] fell below the
standard of care in his care and treatment of

. . . Gonzalez and the delivery of [A ndres]
, with said negligence being a substantial factor in the injuries suffered by [ Andres]

. “9. My reasons for this opinion are as follows:
“A. The standard of care prohibits use of the vacuum following performance of the corkscrew maneuver, in an atte mpt to alleviate an encountered shoulder dystocia;
“B. By using the vacuum, performing the corkscrew maneuver, and then using
the vacuum ( for a second time ) thereafter, Dr. Fraser fell below the standard of care.” The portion of Dr. Phillips’ declaration that the trial court excluded pursuant to Dr. Fraser’s objections stated: “The cause of the shoulder dystocia and resulting injuries was7

[Dr. Fraser ’s ] use of a vacuum, for a second time, following utilization of the corkscrew
maneuver.” 2 Liberally cons truing the portion of Dr. Phillips’ declaration that the trial court did not exclude, we conclude that Dr. Phillips’ declaration created triable issues of material fact regarding whether Dr. Fraser’s use of the vacuum for a second time, after he had perfor med the corkscrew maneuver, was below the standard of care and whether his care was a “substantial factor” in causing Andres’ injuries

. 3 (See Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189 [“[i]n light of the rule of liberal

construc tion, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion”]; Shugart v. Regent s of University of California (2011) 199 Cal.App.4th 499, 506 [ although the
doctor ’ s “ declaration is not a model of specificity, it is sufficient to raise a triable issue of
fact as to whether [ the defendant ’ s] medical care of [ the plaintiff ] met the stand ard of care in the medical community and whether that care caused or contributed to [ the plaintiff’s ] alleged damages ” ].) Dr. Fraser was not entitled to summary judgment on the ground that Andres could not establish the element of a breach of the duty of care.

2 The trial court also excluded Dr. Phillips ’ statement that Dr. Fraser “ had a duty to comply with the standard of care, regardless of whether this was an ‘emergency[]’ situation, as [Dr. Fraser] has characterized it.” Dr. Fra ser had objected to this statement on the ground that it did not take into accoun t the Good Samaritan statutes.

3 Although the trial court sustained Dr. Fraser’s objection to Dr. Phillips’ statement in paragraph 10 of his declaration that the second use o f the vacuum caused the “shoulder dystocia and resulting injuries,” Dr. Fraser did not object to Dr. Phillips’ statement in paragraph 8 of his declaration that the second use of the vacuum was a “substantial factor in the injuries suffered by” Andres, whic h is another way of saying that the second vacuum use caused the s houlder dystocia and injuries.8

C

. Good Samaritan Defense Dr. Fraser argues that the judgment should be affirmed under the Good Samaritan
doctrine. The trial court did not address th is issue and
, s urprisingly, n either on appeal
does Andres. Nevertheless, because “ a ny doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion
, ” ( Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535) and because we review the trial court ’ s judgment not its reasons or rationale ( Plotkin v. Sajahtera, Inc. (2003) 1 0 6 Cal.App.4th 953, 959), we will consider the issue. We again conclude that Dr. Fraser failed to meet his burden on summary judgment on the Good Samaritan defense.
D r. Fraser based his Good Samaritan defense o n Business and Pr ofessions Code
section s 2395 and 2396 , which give immunity to physician s who render emergency care
in certain situations . Business and Professions Code section 2395 “ provides in pertinent part: ‘ No licensee, who in good faith renders emergency care at th e scene of an emergency, shall be liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency care. ’ (Italics added.) Similarly, section 2396 provides: ‘ No licensee, who in good faith upon the request of an other person so licensed, renders emergency medical care to a person for medical complication arising from prior care by another person so licensed, shall be liable for any civil damages as a result of any acts or omissions by such licensed person in rende ring such emergency medical care. ’ (Italics added.) ” ( Reynoso v. Newman (2005) 126 Cal.App.4th 494, 499.) 4 “ The legislative purpose behind [Business and Professions Code] sections 2395 and 2396 ‘ is to induce physicians to render medical assistance to pe rsons in need of such care. ’ [Citation.] The provisions are ‘“ directed towards physicians who, by chance and on an irregular basis,

. . . are called to render emergency medical care. ”’ [Citation.] The statutory purpose is best served by ‘ discouraging e ven the commencement of an action

4 Dr. Fraser also cite d Health and Safety Code section 1799.102. S ection 1799.102 , however, does not apply to emergency services provided in “ places where me dical care is usually offered, ” and therefore is inapplicable here.9

against a health care professional who has rendered emergency medical assistance. ’ [Citation.] ” ( Ibid .)
Absent a preexisting professional relationship with the person receiving

emergency care, “ the Good Samaritan law is applicable to protect a physician who renders emergency assistance in a hospital to the patient of another doctor. [Citation.]

‘ The heart of the application of the Good Samaritan statutes is the inquiry whether a duty of professional care pre

- existed th e emergency. ’ [Citation.] ” ( Kearns v. Superior Court (1988) 204 Cal.App.3d 1325, 1329

. ) When a physician renders emergency care as part of his duties and responsibilities in the medical facility, courts have not allowed the physician to claim the protect ion of
the Good Samaritan statutes. For example, i n C olby v. Schwartz (1978) 78 Cal.App.3d 885, two physicians who provided care in their capacity as members of the hospital ’ s emergency surgical call panel claimed immunity based on the Good Samaritan stat utes originally enacted as Health and Safety Code sections 2144 and 2144.5, the predecessors of sections 2395 and 2396. ( Colby
, supra , at p. 888.) The court noted that the physicians
stated in their declarations that “ they operated upon the decedent as p art of their normal course of practice as members of the hospital emergency [surgical] call panel, ” and held that in this capacity they “ did not render the type of physician care which constitutes

‘ emergency [medical] care ’ as it is used in those sections. ” ( Id. at p. 891.) The court explained that the legislative purpose of the Good Samaritan statutes was “ to induce physicians to render medical aid to individuals who, though in need of such care, were not receiving it

. . . by denying the patient a right of action and thereby discouraging even
the commencement of suit. ” ( I bi d .) The statutes “ were directed towards physicians who, by chance and on an irregular basis, come upon or are called to render emergency medical care, ” often under circumstances wher e “the medical needs of the individual would not be matched by the expertise of the physician and facilities could be severely
limited. ” ( Id. at p. 892.) Physicians on emergency surgical call for a hospital, “ who treat patients requiring immediate medica l care as part of their normal course of practice do not need the added inducement that immunity from civil liability would provide. ” ( Ibid .)10

Such physicians are “ practicing within their area of expertise and with all of the benefits of full hospital fac ilities. ” ( Ibid. ) In contrast, where providing emergency care to patients is not part of the physician’s regular hospital duties and responsibilities, courts have ruled the Good Samaritan immunity applies. For example, in Kearns v. Superior Court , supra , 204 Cal.App.3d 1325, “ unexpected complications during surgery produce [d] a pressing necessity requiring immediate intraoperative assistance during a crucial stage of the operation

. . . . ” ( Id. at p. 1328.) A physician who “ merely happened to be in the hospital treating his own patients and had no duty of professional care to plaintiff preexisting the request for intraoperative assistance ” responded to the emergency. ( Id. at p. 1329.) The court held that the physician was entitled to immunity unde r th e Good Samaritan statutes. ( Ibid .)
In Burciaga v. St. John ’ s Hospital (1986) 187 Cal.App.3d 710 a pediatrician was visiting his patients in the hospital and responded to a “ stat ” request for assistance by an obstetrician delivering an infant in the deliv ery room. ( Id. at p. 713.) The court held that the pediatrician was entitled to summary judgment under the Good Samaritan statutes
because there we re “ reasonable
, uncontradicted inferences that [the pediatrician] owed no duty of emergency care to [the] p laintiff. ” ( Ibid. )
And in McKenna v. Cedars of Lebanon Hospital (1979) 93 Cal.App.3d 282, a nurse paged the chief resident and took him to a room where the patient was having a seizure. ( Id. at p. 284.) The patient died of cardiac arrest shortly after the resident administered medication to stop the seizure. ( Id. at pp. 284

- 285.) The court held that the
trial court properly instructed the jury on the Good Samaritan statute , explaining that the physician was on duty as a chief resident, and “ was, in es sence, a medical volunteer, called to the scene of an emergency ” while treating another patient on another floor of the hospital. ( Id. at p. 286.) The court stated that there was “ no showing [the physician] had a legal duty to render emergency treatment arising from his con tract of employment with
Cedars. In such a situation, the legislative intent of encouraging emergency medical care by doctors who have no legal duty to treat a patient is carried out by applying Business11

and Professions Code section 21 44 to [the physician]. ” ( Ibid. ) Reviewing the case law,
the court in Bryant v. Bakshandeh (1991) 226 Cal.App.3d 1241 stated, “[ a ] physician who renders emergency aid in a hospital is afforded the immunity of the ‘ Good
Samaritan ’ statutes ‘ unless a specif ic factual situation (such as that in Colby v. Schwartz
, supra , [78 Cal.App.3d 855]) is not within the ambit of the legisl ative intent ’ ( McKenna [,

supra , at p

. ] 287

. . . ]) ‘ of encouraging emergency medical care by doctors who have no legal duty to treat a patient. ’ [Citations.] ” ( Id. at p. 1246.) Here, Dr. Fraser testified that his role was to take care of a patient in labor if the patient ’ s physician of record was unavailable and a nurse from the delivery room called
for assistance

. He also testified that “ [a]t St. Francis Hospital, 24/7, there ’ s a physician on call for the hospital. His responsibility is to take care of any patients in labor, when the physician of record is not available. ” In response to counsel for Andres ’ question,

“ So

. . . you k new this was going to be your role in this case, because that ’ s the hospital policy with regard to a patient who is in labor, such as And res Garcia ’ s mother, at that
time
, ” Dr

. Fraser responded, “ If the physician of record is not available. ” Similarly, D r. Fraser stated in his declaration that although he had never seen Gonzalez and “ had no preexisting agreement or arrangem ent with Dr. Carreon to see Ms. Gonzalez in connection with her pregnancy, ” during “ the early morning hours of November 19, 2003,
I se rved as an on

- call OB/GYN for the emergency department at St. Francis Medical
Center. ” In other words, it was part of Dr. Fraser’s job to treat and provide emergency medical care to patients in labor, like Gonzalez
, whose treating physicians were not ther e. In light of this evidence, whether Dr. Fraser was a medical volunteer with no pre

existing duty of medical care
, or was providing emergency medical care as part of his normal duties and course of practice as an on

- call physician
, cannot be resolved on summary judgment on this record. At a minimum, there are contradictory inferences regarding the existence of a preexisting duty to the patient, which create a triable issue of
material fact regarding whether the Good Samaritan defense applies. (See Calem ine v.
Samuelson (2009) 171 Cal.App.4th 153, 161 [reviewing court “‘ seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence,12

which raise a triable issue of material fact ’” ] ; AmerUS Life Ins. Co. v. Bank of America
, N.A. (2006) 143 Cal.App.4th 631, 638 [ “‘ “[ s ] ummary judgment shall not be granted

. . . based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact ” ’” ] .)
Dr. Fraser asserts that he was a member of the “ on call ” emergency care panel for
St. Francis Medical Center but not for St. Francis Family Life Center. The relationship between St. Francis Medical Center and St. Frances Family Life Center, however, is n ot clear from the record, and Dr. Fraser did not submit any evidence on this issue . Dr. Fraser described his role as an emergency department physician as if it included both facilities (to the extent they are separate facilities). Dr. Fraser testified th at he was on call to provide medical services to patients in labor, without limiting his testimony to patients in labor in St. Francis Medical Center as opposed to St. Francis Family Life Center. There is no evidence that there were any patients in labor at St. Francis Medical Center or
that there were any physicians on call at St. Francis Family Life Center who were not on
call at St. Francis Medical Center

. In his brief on appeal, Dr. Fraser states that he provided medical care to Gonzalez “ at the Famil y Life Center at St. Francis Medical
C enter, ” and became involved in her care because he “ was providing on

- call OB/GYN coverage for the emergency department at the hospital. ” Dr. Fraser never state d that his

on

- call duties and responsibilities did not ext end to St. Francis Family Life Center. To the contrary, when there was an emergency with Gonzalez’s delivery at St. Francis Family Life Center, the nurses called the on

- call obstetrician and gynecologist at St.
Francis Medical Center. Gonzalez’s medical records, including the admission record and the delivery summary listing Dr. Fraser as the “ Delivery Doctor, ” state “ St. Francis
Medical Center

- Family Life Center. ” Even Dr. Fraser ’ s expert Dr. Park confused or conflated the two, stating in his declaratio n that Gonzalez “ presented to St. Francis
Medical Center, ” where Dr. Fraser “ was serving as the on

- call OB/G YN for the emergency department. ” Dr. Fraser was not entitled to summary judgment on his Good Samaritan defense.13

D

. Request to Disqualif y the Tri al Judge Andres also requests that we disqualify the trial judge from all further proceedings
on remand in this case pursuant to Code of Civil Procedure section 170.1, subdivision (c), which provides that “ [a] t the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court. ” Counsel for Andres complains t hat the trial judge “ wanted to

‘ deep six ’ this case. In a word, no reasonabl y competent Superior Court judge would have concluded, as shown, that, given the counter

- declaration of Dr

. Phillips, any ruling other than motion denied, was proper herein. ”
An appellate court ’ s “ power to direct that a different judge hear the matter on
remand should ‘ used sparingly and only where the interests of justice require it. ’ [Citation

. ] ” ( In re Marriage of Walker (2012) 203 Cal.App.4th 137, 153.) “ [T]he mere fact a j udicial officer rules against a party does not show bias. ” ( In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1328.) Andres has not shown that the interests of justice require disqualification of the trial judge in this case, and we deny his request. ( See Barboza v. West Coast Digital GSM, Inc. (2009) 179 Cal.App.4th 540, 547.)14 DISPOSITION

The judgment is reversed. Andres is to recover his costs on appeal.

SEGAL, J. *

We concur:

WOODS, Acting P. J.

ZELON, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.